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Moore v. Miller

United States District Court, D. Colorado

May 28, 2014

JAMES D. MOORE, Plaintiff,
SHAWN MILLER, in his individual and official capacity, JOHN ROBLEDO, in his individual and official capacity, THE CITY AND COUNTY OF DENVER, a municipality, Defendants.


JOHN L. KANE, District Judge.

Defendants move for partial summary judgment on Mr. Moore's claims against Shawn Miller and John Robledo alleging illegal seizure, malicious prosecution, and vindictive prosecution[1], and his municipal liability claim alleged against the City and County of Denver. Doc. 104. Defendants also seek a ruling on a matter of judicial estoppel. For the reasons that follow, I DENY Defendants' motion in its entirety.


Denver Police Department ("DPD") Officers Shawn Miller and John Robledo ("Defendant Police Officers") arrested Plaintiff James Moore on March 25, 2008. Mr. Moore alleges that Defendant Police Officers unlawfully seized him without probable cause or reasonable suspicion and used excessive force against him in violation of his constitutional rights. The force used during the arrest by Defendant Police Officers rendered Mr. Moore unconscious and CPR was necessary to restart his heart. Mr. Moore also alleges that Defendant City and County of Denver (the "City") caused the alleged constitutional violations by failing to properly hire, train, supervise and/or discipline its Police Officers regarding probable cause and proper use of force. Finally, Mr. Moore alleges that Defendant Police Officers both maliciously and vindictively prosecuted him on charges of assault, disarming a police officer, resisting arrest, and obstruction of government operations. The criminal charges attendant to these last allegations were dismissed without prejudice upon motion of the District Attorney stating "[t]he People are unable to prove this case beyond a reasonable doubt." Motion and Order to Dismiss Case, Defs.' Ex. I.


Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A disputed fact is material if it could affect the outcome of the suit under the governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. The moving party bears the burden of showing that no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden by showing a lack of evidence for an essential element of the nonmovant's claim. Id. In deciding whether the moving party has carried its burden, I may not weigh the evidence and must view the evidence and draw all reasonable inferences from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).

As I assess the instant motion according to the summary judgment standard, it is not necessary that Mr. Moore "prove" each legal element of his counterarguments, but rather that he shows that genuine issues of material fact remain and that a reasonable jury could infer from the disputed facts that he is able to prove his claims. See Carr v. Castle, 337 F.3d 1221, 1229 n.9 (10th Cir. 2003) ("In the summary judgment context, of course, [the plaintiff's] burden is only that of creating reasonable inferences, not one of proof as such. But any continued repetition of that burden involves an awkward locution, an awkwardness contributed to by the fact that so much of the case law speaks of what a party responding to a Rule 56 motion must establish' or prove' or show.' Whenever this opinion employs such terms, it should therefore be understood as denoting [the plaintiff's] lesser burden of creating reasonable inferences, not the actual burden of persuasion."). In keeping with Carr, whenever I might use the terms "establish, "prove, " or "show" in this opinion, it should be understood as speaking to Mr. Moore's burden of creating reasonable inferences, not his burden of persuasion.


A. Judicial Estoppel Does Not Apply.

Relying on events that transpired during Mr. Moore's criminal case, Defendants argue that I should judicially estop Mr. Moore from taking a position in this litigation that he did not resist arrest, assault and/or obstruct Defendant Police Officers. Defs.' Mot. at 27. The doctrine of judicial estoppel protects the integrity of the judicial system by "prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)(citations omitted). Although there is no one standard test for when to apply the doctrine, courts typically assess whether: (i) a party's later position is clearly inconsistent with its earlier position; (ii) a party has persuaded a court to accept its earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the earlier or the later court was misled; and (iii) a party asserting an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Johnson v. Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005) (citing New Hampshire v. Maine, 532 U.S. at 750-51). Because of the harsh results that follow from the application of judicial estoppel, trial courts should apply the doctrine in only "the narrowest of circumstances." Id. (citations omitted).

Defendants contend that during a motions hearing in his criminal case, Mr. Moore persuaded the court to admit CRE 404(b) evidence over the State's objection by arguing that the evidence was admissible to support his theory of self-defense. Defs.' Mot. at 26. Defendants argue that Mr. Moore's invocation of self-defense amounted to an admission of resistance, obstruction, and assault, id. at 25, and point out that such an admission would be at odds with Mr. Moore's position in the present matter, which is that he did not resist, obstruct, or assault the police officers. Id. According to Defendants, "the Court ruled that the [404(b)] evidence would be admitted with the limited purpose of allowing argument that Defendant Miller was the aggressor and thus supports Plaintiff's position that he acted in self-defense." Id. A review of the transcript, however, reveals that the trial court's decision was not as narrow as Defendants represent, and that misrepresentation is misleading. In articulating the purposes for which he would admit the 404(b) evidence, the trial judge stated, "... what I'm hearing from Counsel is... that the [404(b) evidence] is relevant to rebut the notion that Mr. Moore was in fact either the aggressor in the case or that he resisted the police in the first instance. So that's how I characterize the specific purpose for this evidence to be admissible." Defs.' Mot., Ex. H at 17:5-10. This characterization informs my review of the first two factors that courts consider when determining whether to apply the doctrine of judicial estoppel.

First, the trial judge's ruling does not show that Mr. Moore has taken clearly inconsistent positions with regard to his actions on the night of his arrest. Although self-defense is indeed inconsistent with a general denial, Mr. Moore simply did not take a firm position on his claim of self-defense during the motions hearing. Rather, Mr. Moore signified that he was pursuing two possible theories of defense: self-defense and general denial. See Defs.' Mot., Ex. H at 11:3-10. The trial court's ruling reflected Mr. Moore's position, providing that Mr. Moore could submit the 404(b) evidence for two distinct purposes: (i) to support a claim of self-defense by suggesting that he was not the initial aggressor; or (ii) to support a claim of general denial by suggesting that he did not resist arrest at all. Defs.' Mot., Ex. H at 17:5-10. Criminal defendants may pursue multiple defenses, even inconsistent ones. United States v. Trujillo, 390 F.3d 1267, 1274 (10th Cir. 2004)("[A] criminal defendant is entitled to instructions on any defense, including inconsistent ones, that find support in the evidence and the law and failure to so instruct is reversible error."). Because Mr. Moore did not take a firm position on his claim of self-defense during the motions hearing, his position in the present matter-general denial-is not clearly inconsistent with the stance he took in his criminal case.

Second, because the trial court did not rely solely on Mr. Moore's affirmative defense in admitting the 404(b) evidence, it did not "accept" the claim of self-defense such that judicial acceptance of Mr. Moore's general denial claim in the present matter would create the perception that either this Court or the criminal court was misled. Because I have already determined that Mr. Moroe did not take an inconsistent position, the third factor is not implicated.

Thus, because Mr. Moore has not taken clearly inconsistent positions and the court in his criminal case did not accept his claim of self-defense, I reject ...

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